Welcome to the website of the Digital Media Law Project. The DMLP was a project of the Berkman Klein Center for Internet & Society from 2007 to 2014. Due to popular demand the Berkman Klein Center is keeping the website online, but please note that the website and its contents are no longer being updated. Please check any information you find here for accuracy and completeness.

New Jersey Protections for Sources and Source Material

New Jersey has a shield law that may protect your sources and
newsgathering materials. When information is sought in connection with a civil case, the shield law provides "absolute" protection, meaning that it cannot be overcome. When information is sought in connection
with a criminal case, the shield law provides a qualified privilege, meaning that a court sometimes may order you to disclose information even if you are covered by the statute.

In addition, federal courts in the Third Circuit, which
encompasses New Jersey, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution and the common law. This privilege protects the identity of sources and unpublished
information obtained or prepared in the newsgathering process, such as
notes and outtakes. The strength of the privilege's protection depends
on the circumstances of your particular case. New Jersey state courts
do not recognize any protections for reporters based on the U.S.
Constitution, the New Jersey Constitution, or the common law.

The Privacy Protection Act may protect you against the search
and/or seizure, in connection with a criminal investigation or
prosecution, of materials you possess in connection with a purpose to
disseminate to the public a newspaper, book, broadcast, or other
similar form of public communication. This federal statutory protection
applies regardless of the state in which you live.

Shield Law

Source and Statutory Text

[A] person engaged on, engaged in, connected with, or
employed by news media for the purpose of gathering, procuring,
transmitting, compiling, editing or disseminating news for the general
public or on whose behalf news is so gathered, procured, transmitted,
compiled, edited or disseminated has a privilege to refuse to disclose,
in any legal or quasilegal proceeding or before any investigative body,
including, but not limited to, any court, grand jury, petit jury,
administrative agency, the Legislature or legislative committee, or
elsewhere

a. The source, author, means, agency or person from
or through whom any information was procured, obtained, supplied,
furnished, gathered, transmitted, compiled, edited, disseminated, or
delivered; and

b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.

. . .

N.J. Stat. § 2A:84A-21a

a. "News media" means newspapers, magazines, press
associations, news agencies, wire services, radio, television or other
similar printed, photographic, mechanical or electronic means of
disseminating news to the general public.

b. "News" means any written, oral or pictorial information
gathered, procured, transmitted, compiled, edited or disseminated by,
or on behalf of any person engaged in, engaged on, connected with or
employed by a news media and so procured or obtained while suchrequired relationship is in effect.

. . .

h. "In the course of pursuing his professional activities"
means any situation, including a social gathering, in which a reporter
obtains information for the purpose of disseminating it to the public,
but does not include any situation in which a reporter intentionally
conceals from the source the fact that he is a reporter, and does not
include any situation in which a reporter is an eyewitness to, or
participant in, any act involving physical violence or property damage.

Who is Covered?

New Jersey's shield law uses a complicated series of definitions to
describe who the law protects. Despite the complexity, a reasonable
reading suggests that the law will protect most people who bring news
to the public regularly, including amateur and non-traditional
journalists publishing through online media.

First, to be covered, you must be a "person engaged on, engaged
in, connected with, or employed by news media for the purpose of
gathering, procuring, transmitting, compiling, editing or disseminating
news for the general public or on whose behalf news is so gathered. . .
." You may perform a variety of different roles. You need not be a
writer -- any role in "gathering, producing, transmitting, compiling,
editing, or disseminating" is sufficient for protection. You need not
be a paid employee of a news source to be covered. However, you must
somehow be "connected with" the "news media." Therefore, whether you
are protected hinges on what "news media" means. That definition is
discussed below.

What does "news media" mean? The law defines it to mean
"newspapers, magazines, press associations, news agencies, wire
services, radio, television or other similar printed, photographic,
mechanical or electronic means of disseminating news to the general
public." Importantly, "news media" is not limited to the institutional
press or "mainstream media" -- as long as you have the requisite
relationship with one of the mediums it lists, you are covered. The
definition of "news media" encompasses a wide variety of media. Since
it covers electronic sources that are similar to the traditional
sources it lists, it should cover periodicals online, Web radio,
regular podcasts, and the like. It may cover blogs, since they are
analogous to electronic newspapers or magazines. However, the law may
not cover electronic media that are not analogous to the traditional
sources listed, such as bulletin boards and non-updated Web pages.
Future cases will hopefully clarify the shield law's application to
online publishing and non-traditional journalism.

What Information is Protected?

New Jersey's shield law protects both the identity of your sources
and unpublished information you gather in the process of obtaining
news.

Identity of sources

The shield law protects not only the identity of a source, but
also any information that would lead to identification. You do not have
to promise a source confidentiality in order to protect his/her
identity under the shield. Publishing some information provided by a
source does not eliminate the law's protection of the source's
identity.

Unpublished information

The shield law protects, with certain exceptions, information
gathered for purposes of dissemination to the public. Publishing a
story only eliminates protection for the information that is actually
published. The shield law excludes from coverage your first-hand
eyewitness accounts or your participation in physical violence or
property damage.

The law protects information collected "in the course of
pursuing [your] professional activities." The phrase "in the course of
pursuing...professional activities" might seem to limit the law's
protection to professional employees, but the law defines it
considerably more broadly. It means "any situation, including a social
gathering, in which a reporter obtains information for the purpose of
disseminating it to the public." Thus, as mentioned above, the key is
whether you obtain information for the purpose of disseminating it to
the public.

How Strong is the Protection?

The strength of the shield depends on the type of case:

Civil: When information is sought in connection with a
civil case, the shield is "absolute." If a party in a civil case issues
a subpoena demanding the identity of your source or unpublished
information, you cannot be held in contempt for refusing to reveal that
information. The absolute protection applies when you are a party to a
civil case (e.g., you are suing or being sued), but asserting it could
make it more difficult to make out your case.

Criminal When information is sought in connection with
a criminal case, the shield is qualified -- courts sometimes may order
you to disclose information even if you and the information are
protected by the shield. Prosecutors generally cannot overcome the
shield -- if a prosecutor seeks protected information from you, you
ordinarily will not be forced to reveal information if you are covered
by the shield law (above). On the other hand, criminal defendants can
overcome the shield, if they can prove the following things to the
court:

The information is "relevant, material, and necessary" for the defendant's case;

The information cannot be obtained from a less intrusive source;

"[T]he value of the material sought as it bears upon the issue
of guilt or innocence outweighs the privilege against disclosure";

"[T]he request is not overbroad, oppressive, or unreasonably burdensome."

Constitutional and Common Law Protections in Federal Court

Federal courts in the Third Circuit, which encompasses New Jersey,
have recognized a qualified reporter's privilege based on the First
Amendment to the U.S. Constitution and the common law. It applies to
the identity of sources, information that would lead to a source's
identification, and unpublished materials collected or prepared during
newsgathering.

Who is Covered?

To obtain the protection of the reporter's privilege, you must demonstrate that

You are engaged in investigative reporting;

You are gathering news; and

You have the intent, when starting to gather news, to disseminate information to the public.

Many online publishers and non-traditional journalists should be
able to establish these three requirements. The "investigative
reporting" requirement might present an obstacle for some, but in that
case you wouldn't have any documents or sources to protect. It is hard
to imagine a situation where you would have gathered sources and other
information that would not fit the term "investigative reporting."

What Information is Protected?

Federal courts in the Third Circuit apply the reporter's
privilege to the identity of sources, information leading to
identification of a source, and unpublished information collected or
prepared during newsgathering. While the source or information need not
be confidential in order to receive protection, the qualified privilege
is stronger when confidential information is at stake.

How Strong is the Protection?

The reporter's privilege is qualified, which means that courts
may order you to disclose information if the requesting person's need
for the information outweighs the policies favoring a privilege. To
determine whether ordering disclosure is appropriate in a given
situation, the courts apply a balancing test considering the media's
interests in protecting the information, the relevance of the material
sought, and whether the source was confidential. The results of this
kind of balancing test would be different depending on the facts of the
particular case.

The courts are more inclined to order you to reveal
information when it is sought in connection with a criminal case rather
than in a civil case. They also are more likely to order you to reveal
information when you are a party to the case in question.

Privacy Protection Act

The Privacy Protection Act (PPA) makes it unlawful for government
officials to search for or seize work product or documentary materials
possessed by a person in connection with a purpose to disseminate to
the public a newspaper, book, broadcast, or other similar form of
public communication. 42 U.S.C. § 2000aa(a),(b).
If you are covered by the PPA, it can protect you from both state and
federal officials, regardless of what state you live in. To learn more
about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

Main menu

Copyright 2007-19 Digital Media Law Project and respective authors. Except where otherwise noted,content on this site is licensed under a Creative Commons Attribution-Noncommercial-ShareAlike 3.0 License: Details.Use of this site is pursuant to our Terms of Use and Privacy Notice.